Israel: Surveillance/Monitoring In The Workplace

The purpose of the Protection of Privacy Law, 5741-1981 (the
"Law") is to prevent the infringement of
another's privacy without their consent. Cameras are used for
various purposes, among them, protecting property,
preventing and revealing illegal acts, directing traffic,
maintaining public order, and even supervising employees. The use
of cameras and other surveillance tools can impinge on one's
right to and expectation of privacy. For that reason, the Law
distinguishes between the use of those methods in the public realm,
where generally there is little or no expectation of privacy,
versus in the private domain, where one would likely have an
expectation of privacy. In light of this phenomenon, a question
arises concerning the infringement of privacy due to the use of
surveillance cameras in general, and in the workplace in
particular, while weighing the employer's need or desire for
security and monitoring of employees. The use of cameras and
surveillance tools in the workplace challenges the Law's
intention to protect the one's personal space, since they are
capable of recording the employees' every move throughout the
workday, and not solely the intended surveillance target.
Therefore, the footage is suspected to include sensitive
information that might result in the violation of the
employee's right to privacy. The Privacy Protection Authority,
in the context of its evaluation and balancing of the various
interests, recently published directives of the Database Registrar
regarding the use of surveillance in the workplace and in the
framework of an employment relationship in order to clarify the
Registrar's stance on this matter.

The Isaacov matter1 stipulated
various ground rules regarding the topic of the protection of
privacy in the workplace, as to the use of surveillance and
information technologies. The ground rules also apply to businesses
that are required by the Police to install surveillance cameras as
a precondition for receiving a business license:

1. The employee's right to privacy must also be protected in
the workplace.

2. The employer is obligated to be transparent in informing
employees of the explicit details of any enacted policy regarding
the use of surveillance devices and the reasons that justify, in
the employer's opinion, the use thereof. The employee must
willingly consent to the conditions of the monitoring. It should be
clarified that the employee does not have the right to veto the
policy, but has the right to be aware of the details of the
monitoring, is entitled to state his/her position on the matter and
have his/her concerns taken into consideration to the best of the
employer's ability, while taking into account the purpose of
the surveillance but must actually consent to the monitoring
(resignation or termination of employment due to refusal to consent
would likely give rise to entitlement to severance pay if the
employee is entitled).

3. The employer must act in accordance with the principles of
proportionality, reasonability, good faith and decency in the use
of surveillance technologies in the workplace, and attempt to find
alternative technologies that infringe less on the potential
violation of the employees' privacy.

4. The employer's surveillance actions shall be constrained
by the principle of legitimacy, which stipulates that the use of
information will be restricted to specific purposes that are
essential to the workplace and that are consistent with the
employer's business plan, or that are derived from legislative
provisions or the requirements of an official authority.

5. Excessive use of monitoring technologies, such as security
cameras, which impinge upon the employees' right to privacy,
may expose the employer to administrative and criminal sanctions.
Furthermore, violation of the Law exposes the employer to civil
lawsuits and may enable the employee to resign and be entitled to
severance pay.

As mentioned above, the employee must consent to the policy that
may infringe on his right to privacy. Nonetheless, the case law
typically demonstrates that an employee's consent in any matter
relating to his employment does not necessarily reflect his sincere
agreement, since it is affected by the inherent hierarchy that
exists in an employment relationship. Therefore, the employer must
thoroughly examine the proportionality of the surveillance
activities as well as his compliance with the principle of
legitimacy. According to the Law, the employer must update the said
policy every few years in order to adapt it to changes in the field
and to refresh the employees' awareness of the policy's
existence and content.

The employer must ensure that the employee is aware of the
security cameras' locations, and may not rely merely on the
employee's 'consent in principle' to their location and
use. In the event that there is a legal prohibition regarding the
installation of surveillance cameras in a certain workplace or
location within a workplace, their installation may be considered a
criminal offense. Hidden cameras do not comply with the limitations
provision as they are considered to excessively infringe on the
employee's right to privacy which would, generally, not justify
the intention of the surveillance. If, for instance, the employee
is unaware that s/he is being filmed, s/he will ostensibly not
change his/her conduct to work more efficiently, thereby rendering
the surveillance as an ineffective tool for motivating
employees.

Prohibition of Camera Use for Other Purposes:

As noted, the use of recordings for purposes other than those
that were previously permitted, unless the use is required by law
or an official authority, is prohibited. Use of footage for a
different purpose without consent or protection by law, even if it
is legitimate in and of itself, constitutes excessive use and is a
violation of Sections 2(9), 8(b) and 11 of the Law. Conclusions
reached through that use are likely to be disqualified from being
used as evidence in court.

The Placement of Cameras:

The legitimate placement of cameras is affected by an
employee's reasonable expectation to privacy. Shared
workspaces, although more public than a private office space, are
considered within the realm of "personal space" as it
relates to the expectation of privacy.

However, the placement of cameras in locations such as
bathrooms, dressing rooms or other areas that are closed to the
general public, would likely constitute a violation of the
reasonable expectation of privacy and an intrusion of the
employees' "personal space," which the employee is
entitled to expect to be free of surveillance. Nevertheless, one
may install cameras in specific locations around the workplace that
are not traditional working areas, as long as there is a
justification for the necessity of cameras in the said locations,
as well as in public areas such as corridors or workplace areas
that are accessible to clients. Clients need not be notified of the
exact location of surveillance tools in public areas at a workplace
that are installed to monitor client activity; nonetheless,
employees must be made aware of their location. Since the goal of
the surveillance of clients is not directed at the employees,
failure to notify them would significantly and disproportionately
infringe on their right to privacy.

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